Randy Leonard is the only city councilor who voted not to reverse a decision that would have prevented construction of a cell phone tower in Southeast Portland. (Photo by Sam Tenney/DJC)

For more than 10 years, Portland city officials have had their hands tied in terms of regulating where cellphone towers can be built.

The federal Telecommunications Act of 1996 prevents local authorities from considering health and environmental effects when determining wireless siting issues. Wireless companies that follow simple, preliminary procedures have free rein to build towers in most of the city’s commercial zones, regardless of proximity to residential areas.

But a recent ruling by the city’s Hearings Office to deny construction of a Verizon Wireless facility on Southeast Foster Road had the potential to change that. An appeal by the Mt. Scott-Arleta Neighborhood Association revealed that the proposed facility would generate a total of more than 1,000 watts of effective radiated power (ERP). Both the coalition and the Hearings Office believed that would make the facility illegal under the city’s building code.

However, late last week, Portland City Council overturned the Hearings Office’s decision and stated that the code refers to the amount of ERP allowed per antenna – and not per facility. Now, coalition members and others say that City Council, which has stated on record multiple times that it hopes the FCC would reconsider its wireless guidelines, missed a large opportunity to give power back to local authorities and residents in determining the location of cellphone towers.

“I thought it was a very epochal moment; for the first time in 10 years of these cases, they handed me the first effective regulatory tool to keep these kinds of facilities out of residential areas,” said Commissioner Randy Leonard, the sole councilor who ruled not to overturn the Hearings Office’s decision. “I would have thought the council would have embraced it.”

Leonard said the coalition’s presentation was the most impressive by a neighborhood he had ever seen as a city councilor. The appeal, led by Mount Scott-Arleta residents Marcel Hermans and Chris Hill, found numerous inconsistencies in reports filed by Verizon engineers. Additionally, it found that one of the sources behind the Verizon reports was not a registered engineer.

The biggest inconsistency found was how much wattage the tower would emit. Hermans, the coalition’s transportation chairman, said Verizon gave multiple totals, which encouraged the coalition to see whether city code included ERP limits.

“I assume that in a lot of (neighborhood) appeals, it’s more emotional testimony. And people will say, ‘I don’t want it’ or ‘Verizon is mean,’ ” Hermans said. “We did a very thorough job comparing the city code to the application and systematically going through it step by step and saying, ‘This is what they need to provide and prove.’ ”

According to code, a tower cannot emit more than 1,000 watts of ERP; however, it does not state whether it’s referring to the tower as a whole or individual antennas. Hermans said the city chose to expand the code’s definition by stating that it referred to the antennas.

“It’s really frustrating to me, and it undermines the sense of justice when you read the code and it says, ‘This is what’s allowed,’ and then when you hold the city and the developer to their code, they say, ‘Well, you’re right, but we meant something else,’ ” he said.

Hermans added that he believes the city was pressured by Verizon.

“(Verizon) said, ‘You better come up with an interpretation that allows us to build it and don’t give in to what these citizens want,” he said. “ ‘This means you’re going to make it very hard for any cellphone company to put up any infrastructure in Portland. The citizens won’t have good coverage anymore.’ ”

Scott Charleston, Northwest public relations officer for Verizon, said it was not a matter of interpreting the code a certain way; he believes the FCC’s regulations for cellphone towers are clear in their meaning.

“If the FCC’s standards are no longer adequate in Portland, it would definitely send a message to other carriers,” Charleston said. “It would really make Portland unique in that aspect in throwing out certain FCC measurement standards.”

Commissioner Amanda Fritz, who voted to overturn the Hearings Office’s decision, said that even though the code is unclear, the city has interpreted it this way for hundreds of other applications and is maintaining consistency. She also said that federal health guidelines suggest that the code is referring to antenna ERPs.

However, she added that the appeal would force the council to re-examine the code and regulation of cellphone towers.

“The fundamental, big-picture question is: Do we still want to put the antennas on the right-of-way preferentially? Or do we want to look at industrial sites or other sites?” Fritz said. “Within the federal mandate, we can’t stop any company from providing service anywhere it wants to, but there are some potential changes that we could make.”

Leonard said he is confused by Fritz’s decision to overturn the decision while voicing her desire for change.

“Why would one continuously vote to overturn an attorney and a trained administrative law judge who cited against – for the first time in my memory – a wireless carrier and then somehow claim that this may be a path somehow forward for the neighborhoods,” he said. “I found those remarks to be rather hollow.”

Hermans said City Council’s decision may discourage neighborhoods from standing up to wireless companies in the future.

“To me and to many others, whatever the code says is really a facade, and the real thing is going to be whatever they want to do,” he said.